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In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the "dignity" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court's anti-federalist majority has invoked background principles of customary international law to justify the expansive immunity it has accorded to the states. In applying the law of nations, courts have refused, absent a clear statement from Congress, to entertain private suits against foreign sovereign states. In so doing, the courts have relied on the "equal dignity" of sovereign nations. In its recent state sovereign immunity decisions, the Court has imported this notion of sovereign dignity from the doctrine of foreign state sovereign immunity.

This "doctrinal bridge" is notable for two principal reasons. First, the Court's invocation of the law of nations implicitly suggests that the several states stand in relation to the United States much as do fully sovereign nations. In so suggesting, the Court has found yet another instrument with which to wage the battle over the appropriate role of the states in our federal system. Second, even assuming that it is appropriate to analogize states to foreign nations for purposes of sovereign immunity, the doctrinal consequences of the analogy would be that Congress has authority to abrogate the states' immunity from suit, just as it enjoys such authority with respect to foreign nations. Yet the Court has refused to take the bitter with the sweet; under current doctrine, congressional power to abrogate the states' sovereign immunity is the exception, not the rule. In effect, the Court has treated the several states as more sovereign than fully sovereign nations. This is an unstable place for the doctrine to rest.

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GWU Legal Studies Research Paper No. 275, GWU Law School Public Law Research Paper No. 275

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